The problem is that in practice, hate speech codes are used less against the hateful slurs that inspire their passage, and more against opinions that people disagree with. For example, when the University of Michigan adopted hate speech codes in 1988, one student got in trouble because he claimed that Jewish people used the Holocaust to justify Israel’s policies towards the Palestinians. Another student faced punishment for simply stating that he had heard minorities had difficulty in a particular course. A graduate student was at risk for exploring certain theories in his field of psychobiology. The courts then struck down the hate speech codes as unconstitutional, and between 1989-1995, the courts ruled similarly against the hate speech codes adopted by other colleges and universities.
Hate speech codes, in other words, “inescapably ban the expression of unpopular ideas and views, which is never tolerable in colleges and universities”. This relates to the problem I mentioned in the chapter-2 post, that one person’s hate is another’s struggle against injustice and oppression (Hirsi Ali, Nawaz).
Statistics are relevant. There is no evidence that hate speech laws or codes result in more tolerant attitudes. According to FBI reports, hate crimes in America decreased from 1996 to 2010 to 2015, without hate speech laws. (For that matter, same-sex marriage has gained much wider acceptance between 2001 and 2016, not because homophobic speech has been punished or silenced, but because of the increased presence of gay and lesbian voices in American culture and politics.) By contrast, in Europe, the Anti-Defamation League’s survey of anti-Semitism reports higher levels than in America, despite their having hate speech laws.
Some of today’s students like to claim that hate speech is not protected by the First Amendment, though of course it is. Threats are not protected by the First Amendment. Inciting violence and harassment aren’t either. Ditto for child pornography, the use of copyright, disturbing the peace, threatening national security, etc. These are sometimes called examples of “restrictions on free speech”, but they go beyond offensive opinion content and translate directly into harmful action or violating the rights of others. Child pornography is illegal not because of how offensive it is, but because it involves exploitation of children. Threats are illegal not because they’re emotionally upsetting, but because they cause a person to fear physical harm. Etc.
To censor hate speech would be to censor something solely on the basis of its offensiveness and opinion content, which is exactly what the First Amendment is designed to protect. This is not to dismiss the emotional harm that comes by hate speech, and the authors address what can be done about that in the next chapter.